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TYPES OF DAMAGES - General damages - For personal injuries - Non-pecuniary loss - Pain and suffering

Friday, April 13, 2018 @ 8:35 AM  

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Appeal by the defendants from a $225,000 general damages award made by a jury in the respondent’s favour for pain and suffering she suffered as a result of a motor vehicle accident. The respondent was 18 years old at the time of the accident. She suffered a fracture of her tibia and an intra-articular fracture of the right talus bone requiring orthopedic surgery. She testified that she had suffered considerable pain and restriction of movement as a result of the fracture. The medical experts agreed that she would likely require further surgery in the future and that she would suffer on-going pain and restriction of movement on account of arthritis in her ankle. The appellants submitted that the trial judge erred in restricting the scope of testimony of the appellants' expert, in failing to declare a mistrial as a consequence of inappropriate closing submissions by the respondent's trial counsel and in failing to provide sufficient guidance to the jury on the appropriate range for non-pecuniary damages.

HELD: Appeal dismissed. The trial judge did not err in restricting the scope of testimony of the appellants’ expert to the four corners of his report due to the appellants’ failure to provide the respondent with a signed report until part-way through the trial. This was a discretionary decision for the trial judge to make. She gave clear and cogent reasons in her ruling and there was no ground for appellate intervention. Although the judge considered the respondent’s trial counsel’s closing address to the jury to be inappropriate and inflammatory, particularly with respect to his comments relating to the limitations of the appellants’ expert evidence, the trial judge did not err by refusing to declare a mistrial. While the conduct of respondent’s trial counsel should not be condoned, the trial judge was in the best position to determine whether a mistrial was required to deal with the inflammatory closing address. The trial judge gave a very clear and strong instruction to the jury to disregard the problematic portions of counsel’s closing. When the record was considered as a whole, the Court was not persuaded that there was a miscarriage of justice requiring it to order a new trial. The trial judge did not err by failing to instruct the jury that the range for general damages suggested by the respondent was too high, given the nature of the injury and the likelihood that the respondent would likely require further surgery in the future that would leave her quite disabled.

Dunk v. Kremer, [2018] O.J. No. 1456, Ontario Court of Appeal, R.J. Sharpe, R.G. Juriansz and B. Miller JJ.A., March 20, 2018. Digest No. TLD-April92018009